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observation/ finding of Special Judge, wherein while allowing the application under Section 321 Cr.P.C it has .

given clean chit to accused/respondents No.2 and 3.

34. Now, at this stage, this Court needs to determine whether order dated 22.12.2008 passed by learned Special Judge is strictly in terms of Section 321 Cr.P.C, where it has of been specifically provided that the public prosecutor may with the consent of the Court withdraw the prosecution of rt any person of any offence before the pronouncement of the judgment. Similarly, this Court needs to examine that under what circumstances public prosecutor moved instant application under section 321 Cr.P.C, seeking withdrawal from the prosecution that too after three years of the presentation of the challan. Undoubtedly, section 321 Cr.P.C, clearly empowers the public prosecutor in charge of the case to withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, before the judgment is pronounced in the case but with the consent of the Court.

35. Section 321 Cr.P.C needs three requisites to make an order under it valid:(1) The application should be filed by a Public Prosecutor who is competent to make an ...49...

application for withdrawal,(2) he must be in charge of the case, (3) the application should get the consent of the Court .

before which the case is pending.

36. At the cost of repetition, it is again reiterated that bare reading of Section 321 Cr.P.C, leaves no scope for other interpretation to conclude that the public prosecutor can seek of withdrawal from the prosecution at any stage before the pronouncement of judgment but taking note of the law laid down by the Hon'ble Apex Court from time to time as has been rt discussed and deliberated upon in detailed judgment referred in above, withdrawal of prosecution can be allowed only in the interest of justice and there should be ample evidence on record to suggest that public prosecutor seeking withdrawal from prosecution in furtherance of cause of public justice. Before, making an application under section 321 Cr.P.C public prosecutor is required/expected to apply his mind to all the relevant material made available on record by the Investigating Agency and satisfy himself that withdrawal from the prosecution would subserve the public interest or not. Whenever, public prosecutor moves an application under section 321, it is his bounden duty to state in detail that what material actually he considered, which compelled him to move an application for withdrawal. Collective reading of the judgment referred ...50...

hereinabove as well as law laid down by the Hon'ble Apex Court from time to time clearly suggest the public prosecutor while .

moving an application under Section 321 Cr.P.C is required/expected to form an independent opinion on the basis of the material on record that with the withdrawal of the case, public interest at large would be served. If public prosecutor moves an application under section 321 Cr.P.C for withdrawal of after filing of challan or framing of charge it becomes more important for him to state in the application that what are those rt compelling circumstances which led him to file an application under Section 321 Cr.P.C. because it is only public prosecutor who presents challan under section 173 Cr.P.C and thereafter at the time of framing of charge persuades the Court to frame charges against the accused solely relying upon the documents adduced on record by the Investigating Agency suggestive of the fact that prima-facie case exist against the accused. Once investigating agency after completion of the investigation comes to a conclusion that a prima facie case exists against the accused, it submits police report along with required documents to be relied upon to the public prosecutor for filing challan under Section 173 Cr.P.C in the competent Court of law. If at that stage, learned public prosecutor comes to the conclusion that it is a fit case, where on the basis of evidence adduced on record, conviction can be recorded against the accused, he files challan ...51...

a case that withdrawal of prosecution is in public interest and if same is not allowed, it will be against the interest of justice.

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38. Similarly, section 321 Cr.P.C while empowering the public prosecutor to move an application for withdrawal from prosecution also provides that withdrawal, if any, would be with the consent of the Court, meaning thereby, that application moved by public prosecutor under Section 321 Cr.P.C. can not of only be allowed in mechanical manner without the consent of the Court. Plain reading of Section 321 Cr.P.C. somehow suggest rt that public prosecutor has independent power under Section 321 to withdraw prosecution, at any stage, because admittedly Section 321 Cr.P.C does not provide guidelines factor/circumstances under which public prosecutor can move an application. But careful reading of Section 321 Cr.P.C, wherein it has been specifically mentioned that "with the consent of the Court" certainly indicates towards the duly imposed/cast upon the Court by the legislation to ascertain whether the application moved by the public prosecutor is in good faith or in the public interest or not. Court while examining the application under Section 321 Cr.P.C must consider whether public prosecutor has considered the material and reached to the conclusion that withdrawal from the prosecution would serve the public interest. Similarly, duty is cast upon the Court while considering the application under Section 321 Cr.P.C to ensure ...53...